The topic of bathroom use by transgender individuals is a hot one, and that includes in the realm of employment law. Indeed, the California Fair Employment and Housing Council (FEHC) is in the process of drafting new regulations that define employment practices which constitute discrimination against transgender applicants and employees. As an employer in California, it is crucial that you stay current with these legal developments.
The California Fair Employment and Housing Act (FEHA) is the primary law that provides employees, including transgender employees, with protection from discrimination, retaliation and harassment in employment. FEHA’s anti-discrimination provisions apply to all employers with five or more full-time or part-time employees. However, new FEHA regulations went into effect on April 1, 2016, that added protections for transgender employees and applicants. The FEHC proposes to take further steps toward protecting this group of employees with proposed Regulations Regarding Transgender Identity and Expression. These will affirmatively require employers to make workplaces non-discriminatory by:
Providing “comparable, safe, and adequate” facilities (such as restrooms and locker rooms) to employees without regard to the sex of the employees;- Permitting employees to use the facilities that correspond to the employee’s gender identity or gender expression;
- Using gender-neutral signage on single occupancy facilities under their control; and
- Addressing and referring to an employee with their preferred name, gender, and pronoun.
California employers would also be in violation of the FEHA’s prohibition of discrimination against transgender workers by:
- Requiring an employee to use a particular facility, or undergo or provide proof of any particular medical treatment to use facilities designated for use by a particular gender;
- Requiring an employee to dress or groom themselves in a manner inconsistent with their gender identity or gender expression;
- Requiring an applicant or employee to state whether they are transgender;
- Considering an applicant to have been untruthful by identifying themselves on an employment application in a manner inconsistent with their assigned sex at birth;
- Inquiring as to or requiring proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment, unless the employer demonstrates a bona fide occupational qualification or the employee initiates communication with the employer regarding adjustments to their working conditions; and
- Discriminating against an employee for undergoing a social transition (changing their gender presentation) or a physical transition (receiving medical treatment including hormone therapy or gender reassignment surgeries).
These proposed regulations are scheduled for their next round of public hearing and comment on June 27, 2016. You are invited to contact attorney Drew E. Pomerance to discuss your options as a California business owner before this hearing takes place and/or the implications of these regulations on your business.
